93 Decision Citation: BVA 93-01281
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-06 689 ) DATE
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THE ISSUES
Entitlement to service connection for a left shoulder
disability.
Entitlement to service connection for a right hip disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. L. Prichard, Associate Counsel
INTRODUCTION
The veteran had active service from December 1942 to July
1945.
This case comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1990 rating decision of
the Newark, New Jersey, Regional Office (RO), which denied
the veteran service connection for a left shoulder
disability and a right hip disability. The notice of
disagreement was received in December 1990. A statement of
the case was issued in April 1991. A substantive appeal was
received in May 1991. The veteran was afforded a personal
hearing before a hearing officer in June 1991. Supplemental
statements of the case were issued in October 1991 and
December 1991. The case was received and docketed at the
Board in May 1992. The veteran's representative, the
Disabled American Veterans, submitted additional written
argument in July 1992, and the case is now ready for
appellate review.
The veteran's September 1990 claim initially included the
issues of an increased rating for the veteran's
service-connected scars from a gunshot wound to the right
scapula and right arm. This claim was denied by the October
1990 rating decision, but was not included in the notice of
disagreement. At the June 1991 personal hearing, the
veteran submitted testimony concerning his right arm
disability, and sought to reopen his claim for an increased
rating. In addition, the veteran has submitted a claim for
an increased rating for his service-connected anxiety
psychoneurosis. The former issue has not yet been fully
developed by the RO, and the latter has not been
adjudicated. They are referred to the RO for proper
development and adjudication.
CONTENTION OF APPELLANT ON APPEAL
The veteran contends that he sustained a shrapnel wound in
his left shoulder during active service. He states that he
was injured when an enemy shell landed in front of his
machine gun. He notes that he only recently learned that a
small piece of shrapnel remained in his left shoulder. He
argues that he received treatment for his injury during
service, and was returned to duty. In addition, the veteran
contends that he received a right hip injury due to enemy
fire. He argues that an enemy shell caused him to injure
his hip while he was diving for cover.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. 7104 (West
1991), following review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the evidence supports service connection for a
retained foreign body of the left suprascapular area, but
the preponderance of the evidence is against the veteran's
claim for a right hip disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's service medical records are entirely
negative for any treatment for a left shoulder injury or a
right hip injury during active service.
3. The veteran's June 1991 testimony and three "buddy"
statements submitted in support of his claim state that the
veteran sustained injuries to his left shoulder and right
hip during combat, and service medical records include a
December 1944 X-ray study showing a small metallic foreign
body in the left suprascapular region, confirmed by an April
1990 private X-ray study.
4. The August 1991 Department of Veterans Affairs (VA)
examination is negative for any scars or residual disability
of the right hip.
5. The veteran testified at his June 1991 personal hearing
that he has no residual disability of the right hip.
CONCLUSIONS OF LAW
1. A retained foreign body of the left suprascapular area
due to a shell fragment wound was incurred in active
service. 38 U.S.C.A. 1110, 5107 (West 1991).
2. A right hip disability was not incurred in or aggravated
by active service. 38 U.S.C.A. 1110, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
This section of the Board notes that it has found that the
veteran's claims are "well grounded" within the meaning of
38 U.S.C.A. 5107 (West 1991). That is, we find that he has
presented claims which are plausible. We are also satisfied
that all relevant facts have been properly developed. The
record is devoid of any indication that there are other
records available which might assist this section in
reaching a decision. The record is complete, and no further
assistance to the veteran is required to comply with the
duty to assist the veteran mandated by 38 U.S.C.A. 5107
(West 1991).
The veteran contends that he sustained an injury to his left
shoulder and his right hip during active service. After a
thorough consideration of the veteran's contentions and
careful examination of the medical evidence of record, this
section of the Board finds that service connection is
warranted for a retained foreign body in the left
suprascapular area as a result of a shell fragment wound.
However, this section is unable to find that service
connection is warranted for a right hip disability. The
veteran's service medical records include a December 1944
X-ray study which shows a small metallic foreign body
located in the left suprascapular region. The remainder of
the records are negative for any indication of an injury to
or treatment of the left shoulder or right hip.
The veteran has submitted the results of an April 1990 X-ray
study in support of his claim. This study states that there
is a square metallic foreign body overlying the inferior
aspect of the left clavicle laterally and further notes that
there had been no change since a previous study conducted in
April 1987. The veteran has also submitted three "buddy"
statements from soldiers who served with him in combat. A
July 1990 statement from [redacted] a July 1991
statement from [redacted], and an undated statement from
[redacted], all state that they recall the veteran being
wounded in combat, and the statements from Mr. [redacted] and
Mr. [redacted] specifically note that the veteran was injured
in his left shoulder and right hip. The veteran's June 1991
testimony also states that he was injured in his left
shoulder and right hip in combat.
Service connection is warranted for a disability resulting
from an injury incurred in or aggravated by active service.
38 U.S.C.A. 1110 (West 1991). While the August 1991 VA
examination was unable to find any current residuals of a
left shoulder wound and the veteran testified that he had no
residual disability of the left shoulder, this section
believes that service connection is warranted for a retained
foreign body in the left suprascapular area as a result of a
shell fragment wound. The December 1944 X-ray study noted a
foreign body in this area, and the April 1990 X-ray study
shows that the veteran continues to carry the foreign body
as a current residual of his wound. This evidence supports
the June 1991 testimony of the veteran and the statements by
his fellow soldiers. We note, however, that there was
apparently no injury to the left shoulder joint as reflected
by the veteran's testimony and the VA examination.
However, the August 1991 VA examination did not disclose any
current disability of the right hip. The right hip had no
evidence of any scar, and no other abnormality was noted.
In addition, the service medical records were negative for a
right hip wound, and the veteran testified at the June 1991
hearing that he has no residual disability of the right
hip. While the testimony indicates that the veteran may
have received some form of injury to the right hip during
active service, current medical evidence does not
demonstrate that this injury has resulted in any disability,
including scarring. The veteran's lack of a current
disability has been verified by his own testimony. Without
the existence of a current disability, service connection
cannot be granted. Rabideau v. Derwinski 2 Vet.App. 141,
143 (1992). Therefore, service connection for a right hip
disability is not warranted.
ORDER
Entitlement to service connection for a retained foreign
body in the left suprascapular area as a result of a shell
fragment wound is granted.
Entitlement to service connection for a right hip disability
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
GARY L. GICK (Member Temporarily Absent)
HOLLY E. MOEHLMANN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
(CONTINUED ON NEXT PAGE)
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.